If you have been accused of a crime in California where a victim suffers a loss, the court may mandate that you make restitution to the victim as part of your sentence.

However, mandating restitution and collecting it are two different things. California Penal Code 1214 PC is the law that makes restitution enforceable, like a civil judgment.

Once a judge decides on the amount of restitution you must pay, the victims of a crime are given the power and resources to collect the money from you, the same as if it were a civil judgment. The resources include a defendant's financial records, garnishing wages, and a lien on any property.

Penal Code 1214 PC permits crime victim restitution to be enforced by a civil judgment.

This may also save the victim and the defendant the trouble of going through a separate civil lawsuit to recover losses.

The terms restitution and compensation refer to a victim's right to recover economic losses due to someone's criminal wrongdoing.

In California, a restitution hearing is held in many types of criminal cases so the victim can establish the amount of their losses and for a defendant to challenge the amount of restitution that a victim is seeking.

At the hearing, victims have the burden of proving that the defendant's criminal behavior substantially caused their losses. Note that a defendant's conduct doesn't have to be the only factor contributing to the loss but must be at least a substantial factor.

The California Victim Compensation Program (CalVCP) is a state fund designed to compensate victims of violent crimes for their losses, including damaged or stolen property, medical bills, therapy costs, lost wages, and lawyer fees.

CalVCP claims are usually made in connection with Penal Code 187 PC murder, Penal Code 261 PC rape, Penal Code 288 PC lewd acts with a minor, and Penal Code 211 PC robbery, domestic violence, DUI, and assault with a deadly weapon. Let's review this state law in more detail below.

What Does the Law Say?

Effectively, PC 1214 provides the means for a victim of a crime to collect restitution from the defendant once the judge has determined how much the restitution should be.

When the amount of restitution is decided, the victim can collect that amount from the defendant using all resources available under California law. These include, but aren't limited to:

• The defendant's statement of assets (i.e., their financial records and holdings), which is signed under penalty of perjury;
• The ability to place a lien on the property to collect the debt; and
• The ability to garnish the defendant's wages.

The victim has to prove the amount of compensation they are seeking is proper. The standard of proof is “a preponderance of the evidence,” which means more likely than not.

The evidence a victim can present includes medical bills and other related documents, or they are allowed to explain their losses. If a defendant decides to challenge the amount, they have to prove that the requested amount is inappropriate.

What Can Be Included in Restitution?

The amount of restitution that a victim can collect from a defendant is based on the "loss" suffered by the victim due to the crime. This may include:

• The cost of medical treatment;
• The cost of repairing or replacing damaged or stolen property;
• Loss of wages (including future lost earnings if the victim is rendered unable to work); and
• Attorneys' fees for obtaining a restitution ruling.

Unlike civil lawsuits, there are some limits to what constitutes restitution in a criminal case. In civil personal injury lawsuits, for example, intangible damages such as pain and suffering or punitive damages can cause the amount recovered from going much higher.

"Restitution" is only intended to cover the total amount of reasonable losses or expenses incurred due to the crime.

Who Can Be Considered a Victim?

The term "victim" is broadly defined in California law. For the purposes of restitution, a victim may include the following:

• The person against whom the crime was committed;
• Any family member of that person who suffers financial losses as a direct or indirect result of the crime (e.g., the loss of wages due to having to care for the victim); or
• A business or other entity that suffered a loss due to the crime.

How is Restitution Determined?

If a victim has suffered a loss due to a crime, you're accused of committing, a restitution hearing may be held to determine how much restitution should be awarded.

A hearing is held to determine restitution.

At the hearing, the victim has the burden of proof to show that your actions substantially contributed to their loss. They may present evidence such as medical records, bills, business records, profit and loss statements, etc.

Your lawyer will also have the opportunity to dispute the amount of restitution by showing how the amount requested is inappropriate or disproportionate to the crime.

If the judge finds restitution is appropriate, they will issue an order specifying the amount to be paid and the payment schedule. Once the order is issued, it is treated as a civil judgment and can be collected similarly to any other debt.

The court may allow a payment plan if you cannot pay all the restitution. However, you will still be responsible for the interest on the unpaid balance and may be required to pay a collection fee.

Can Restitution Be Negotiated?

No. By law, the amount of restitution is the amount of reasonable loss. While the hearing allows for some dispute over the total qualifying losses, restitution is not a punitive award.

Once the judge determines the amount, it can't be reduced by plea bargaining or other means.

How Does Restitution Fit with the California Victim Compensation Program (CalVCP)?

Restitution is not the same as recovering compensation under CalVCP, a state fund that is a "payor of last resort" to give relief to victims of certain crimes when funds can't be recovered by other means.

Additionally, CalVCP funds are designated to reimburse victims for physical injuries (mainly due to violent crimes) rather than economic losses. Restitution awards can cover both physical and financial losses.

Contact our law firm to review the case details if you need additional information. Eisner Gorin LLP is based in Los Angeles, California. You can contact us by phone or fill out the contact form.